QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| STEVEN HOWARD & JUSTINE BENNETT
|- and -
|- and -
|MORRIS HOMES LTD
(instructed by Richard Buxton Environmental & Public Law) for the Claimants
Jonathan Easton (instructed by Wigan Borough Council – Legal Services) for the Defendant
Sasha White QC (instructed by Gateley LLP) for the Interested Party
Hearing dates: 11-12 December 2014
Crown Copyright ©
Mr Justice Supperstone :
"The history of the site could potentially give rise to issues surrounding ground contamination. The site has been previously remediated as part of application A/00/52569 and a detailed site investigation with full remediation strategy has been submitted. Subsequently, further assessments of the site, including Phase I and Phase II studies, and additional assessment in relation to potential anthrax contamination have been carried out. This assessment remains ongoing at the present time; however, there is no information to suggest that this threat is significant and not capable of appropriate remediation. The Environment Agency and Public Health England have been in receipt of the assessments, and whilst the EA require further confirmation, this is capable of resolution through the topic specific assessment presently being conducted. Similarly, present expert analysis does not suggest significant contamination risks in relation to groundwater and the adjacent canal."
"Having regard to the previous site usage, specific consideration has been given to potential site contamination issues and the effects of site preparation and final development on the future occupiers of the site and the surrounding environment and built up areas. However, any identified contamination would not of itself indicate the need for environmental impact assessment.
Any such adverse impacts are likely to be localised and capable of adequate mitigation. Assessments already undertaken indicate that this aspect can be appropriately dealt with through the submission of detailed, specialist reports.
Furthermore, there are no significant inter-related impacts which would require a wider reaching analysis of the contamination issue.
It is therefore considered that the screening opinion of the local planning authority is that this proposal does not comprise EIA development."
"A specific issue has been raised by an objector that anthrax spores may be present on the site and have the potential to cause serious harm to health. The intrusive site investigations did not find any evidence to support this claim. As a result of this claim the Council commissioned an independent assessment of the history of the site to examine the likelihood of anthrax being present. Professor Sally Sheard of the University of Liverpool, supported by Public Health England … concluded that the risk of anthrax being located below the site in large enough quantities to cause harm to human health is minimal given the inspection regime at the former factory from 1885. No anthrax was discovered in any of the most recent soil samples submitted for analysis and Public Health England conclude risk to construction workers and local residents is very low.
It is therefore evident that the risk of anthrax being located below the site in large enough quantities to cause harm to human health is minimal.
The main contaminant found on the site is asbestos, with one hot spot of arsenic also being identified. As part of the application a full remediation strategy has been submitted that outlines measures to protect the future occupiers and existing residents. These measures are the removal, where necessary, of the asbestos and arsenic contaminated soil followed by the introduction of a 600-750mm capping layer that includes a 150mm anti-dig layer. As part of the previous application on the site a soil cap of 300mm was put in place across the site and some limited remediation was carried out appropriate for its then use as open space.
A condition will be included on the decision notice to ensure that the works are being carried out in accordance with the remediation strategy and it is therefore considered that the proposal complies with the requirements of Policy 17 of the Core Strategy and Policy EV1A of the Replacement Wigan UDP."
"The development shall be carried out in full accordance with the approved Remediation Strategy."
i) The test to be applied is:
"Is this project likely to have significant effects on the environment?"
(See Loader v Secretary of State for Communities and Local Government  EWCA Civ 869 at para 43, per Pill LJ).
ii) The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case (see Loader at para 43).
iii) The weight to be attached to material considerations is a matter of planning judgment within the exclusive jurisdiction of the decision maker (Tesco Stores Ltd v Secretary of State  1 WLR 759, per Lord Hoffmann at 780).
iv) Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion (Jones v Mansfield District Council  Env LR 21 at para 17, per Dyson LJ; and see para 38). Also see R (Bowen-West) v Secretary of State for Communities and Local Government  EWCA Civ 321 at para 33 where Laws LJ stated: "We are dealing with what is quintessentially a matter of judgment").
v) In determining the likelihood of a development having significant environmental effects it is open to the decision maker to have regard to proposed remedial measures (Gillespie v First Secretary of State  EWCA Civ 30). In Jones Dyson LJ, having referred to Gillespie, stated at para 39:
"…the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."
vi) The court should approach a challenge to the decision of issues such as these on Wednesbury principles (Loader at para 31).
vii) The number of cases of Schedule 2 development which are EIA developments will be "a very small proportion of the total number of Schedule 2 developments" (see para 34 of Circular 02/99 Environmental Impact Assessment).
"The made ground is contaminated with PAHs, lead and locally asbestos. It is considered that this material poses a moderate (locally significant) risk to end users and remediation is required to protect them. It is considered that the most appropriate remedial solution for the majority of the site is a the placement of a 600mm soil capping layer in all new private gardens and areas of soft landscaping. The capping layer should be increased to 750mm and include a 150mm-thick anti-dig layer where asbestos has been identified due to perceived greater risk (see Remediation Plan in Appendix G for affected plots). Depending on the proposed finished levels, at least some of the asbestos contaminated made ground may require removal to allow for the cap to be placed. Should this be the case, then measures will have to be put in place… to suppress any dust generated (e.g. damping down)."
Section 5 ("Further Works") states that
"It is considered that no further works are necessary to assess the risk to human health, controlled waters and construction materials".